Norman v. Commissioner of Social Security
Filing
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OPINION & ORDER re: 14 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the reasons discussed above, judgment on the pleadings is granted in favor of plaintiff and the case is remanded for further proceedings consistent with Judge Pitman's report and recommendation. (Signed by Judge Andrew L. Carter, Jr on 9/25/2012) (lmb)
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DOC # : - -__r--oz-:=--.....
DATE FILED: " • , • •, , ,
Nelson Norman,
10 Civ. 5839 (ALC) (HBP)
Plaintiff,
OPINION & ORDER
-against-
Michael J. Astrue, Commissioner of Social Security
Defendant.
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ANDREW L. CARTER, JR., District Judge:
Plaintiff Nelson Norman brings this action pursuant to Section 205(g) of the Social
Security Act ("SSA"), as amended, 42 U.S.C. §§ 405(g), 1383(c)(3), to seek review of a final
decision of the Commissioner of Social Security ("defendant") denying his application for Social
Security Income ("SSI") benefits. Both plaintiff and the defendant have moved for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF ## 12 and
14.) In his report and recommendation (the "Report"), Magistrate Judge Henry B. Pitman
concluded that the plaintiffs motion should be granted and that defendant's motion should be
denied, and recommended that the case be remanded for further proceedings. Specifically,
Magistrate Judge Pitman recommends that on remand: (1) the Administrative Law Judge
("ALJ") consider whether plaintiff meets the requirements of Listing 1.04A and explain his
reasoning for his ultimate determination; (2) the ALJ confirm that all relevant medical records
from Dr. Beale have been provided to the SSA and specify the weight ultimately given to Dr.
Beale's opinion, consistent with the rules governing a "treating physician"; and (3) the ALJ
reassess plaintiffs credibility and clearly set forth the support for his ultimate determination.
Defendant was granted an additional thirty days to object and filed timely objections to the
Report on April 11,2012. Defendant objects to the Report on four grounds: (1) Judge Pitman
erred in referencing a previous ALJ decision rather than solely the final ALJ decision; (2) the
ALl's evaluation ofplaintiffs impairments at step three of the sequential evaluation was
supported by substantial evidence; (3) the AU's evaluation of Dr. Beale's assessment was
correct under the applicable rules; and (4) the ALJ properly assessed plaintiffs credibility.
The court has reviewed the issues de novo and reached the same conclusions as did Judge
Pitman as expressed in his well-reasoned Report. As such, Judge Pitman's Report is adopted in
full. I will address defendant's specific objections herein.
BACKGROUND
The Court assumes familiarity with the background and procedural posture of this case,
and incorporates fully the description contained within Magistrate Judge Pitman's thorough and
detailed Report.
DISCUSSION
I. Standards of Review
A. Review of the Magistrate Judge's Report
A district court may designate a magistrate to hear and determine certain motions and to
submit to the court proposed findings of fact and a recommendation as to the disposition of the
motions. See 28 U.S.C. § 636(b)(1). Within fourteen days of service of the recommendation,
any party may file written objections to the magistrate's report. Id. In evaluating the report, the
court "may accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate." Id. Where a party submits timely objections to a report and
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recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected.
id.; Fed. R. Civ. P. 72(b); see, e.g., Eisenberg v. New England
Motor Freight. Inc., 564 F. Supp. 2d 224,226-27 (S.D.N.Y. 2008). Where no "specific written
objection" is made, the district court may adopt those portions "as long as the factual and legal
basis supporting the findings and conclusions set forth ... are not clearly erroneous or contrary
to law." Eisenberg, 564 F. Supp. 2d at 226.
B. Review of the Administrative Law Judge's Decision
When a claimant seeks review of a Social Security hearing regarding disability benefits,
the Court's function is not to detennine de novo whether the claimant is disabled, but rather to
detennine only "whether the correct legal standards were applied and whether substantial
evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also
Schaal v. Apfel, 134 F.3d 496,501 (2d Cir. 1998) ("[I]t is not our function to detennine de novo
whether plaintiff is disabled."). The Supreme Court has defined "substantial evidence" as "more
than a mere scintilla" of evidence, and means "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,401
(1971) (internal quotation marks omitted); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002)
(internal quotation marks omitted); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). Review of
the ALl's application oflegal principles is de novo. Pollard v. Halter, 377 F.3d 183, 188 (2d Cir.
2004).
II. Defendant's Objections
A. Consideration of a Non-Final Decision
Defendant argues that the Report repeatedly "considers" an ALJ decision issued on
December 28, 2005, which was vacated by the Appeals Council, and that such consideration is
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prohibited by sections 405 (g) and (h) of the Social Security Act. "It is well settled" that these
provisions of the Social Security Act provide that "judicial review of Social Security benefit
determinations is limited to 'final' decisions of the Commissioner made after a hearing, that
available administrative procedures must be exhausted and that a final decision is a prerequisite
for subject matter jurisdiction in the District Court." Matthews v. Chater, 891 F. Supp. 186, 188
(S.D.N.Y. 1995) (citing Califano v. Sanders, 430 U.S. 99,103 n. 3 (1977)).1
In this case, three ALJ decisions were issued rejecting the plaintiffs disability claim,
including one issued in December 2005. The plaintiff requested review of each decision, and
each time the Appeals Council granted review and remanded the case for further consideration.
Finally, in a decision dated May 29, 2008, the ALJ rejected the plaintiffs disability claim for a
fourth time. This determination became the final decision of the Commissioner on June 10,
2010, upon the Appeals Council's denial of plaintiff s request for review. Shortly thereafter,
plaintiff commenced the present action with this Court. It is not disputed that plaintiff exhausted
his available administrative procedures or that this Court has subject matter jurisdiction over this
case. Rather, defendant argues that Judge Pitman's various references to the December 2005
throughout his Report are "plainly erroneous" because the May 2008 decision is the only final
decision. (Objection at 4.)
This Court disagrees. The requirements of 42 U.S.C. §§ 405(g) and (h) are prerequisites
for subject matter jurisdiction, which plaintiff satisfied once he exhausted his administrative
procedures and obtained a final decision after being denied review from the Appeals Council.
See Stoothoffv. Apfel, No. 98-cv-5724 (JGK), 1999 WL 493356, at *2 (S.D.N.Y. July 12, 1999)
I Section 405(g) provides, in relevant part: "Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party ... may obtain a review of such decision by a civil action."
42 U.S.C. § 405(g). Section 405(h), in relevant part, provides: "No findings offact or decision of the Commissioner
of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided."
Id. § 405(h).
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(citing Sanders, 430 U.S. at 103 n. 3); see also Ryan v. Bentsen, 12 F.3d 245,247 (D.C. Cir.
1993) ("The Secretary's 'final decision' is a prerequisite to subject matter jurisdiction in the
district court and consists of two components, a presentment requirement and an exhaustion
requirement."). Defendant cites no support for the proposition that once the Appeals Council
vacates and remands a decision, all that was included in the administrative record ceases to be
relevant such that a reviewing court cannot refer to parts of prior ALJ decisions. Arguing that a
district judge cannot "review" a non-final decision for jurisdictional purposes is quite different
than arguing that a judge cannot reference relevant facts contained within a prior, albeit vacated,
ALJ decision. While the former is plainly erroneous, the latter is what the Magistrate Judge did
here. Accordingly, this objection is overruled.
2. Listing Requirement
Defendant next argues that Judge Pitman erred in requiring the ALJ to explain his
reasoning for concluding that the plaintiff did not have an impairment that meets any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, because the ALJ's decision was
nonetheless supported by substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 468 (2d
Cir. 1982) (affirming ALl's determination at step three even though it did not contain an express
rationale, "since portions of the AU's decision and the evidence before him indicate that his
conclusion was supported by substantial evidence"); see also Sava v. Astrue, No. 06-cv-3386
(KMK)(GAY), 2010 WL 3219311, at *4 (S.D.N.Y. Aug. 12,2010) (affirming determination of
ALJ that step three was not met even though the ALJ did not give an express rationale where
there was "sufficient uncontradicted evidence in the record to provide substantial evidence for
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[that] conclusion").
In~,
the Second Circuit was careful to circumscribe the precedent it
was setting:
[I]n spite of the ALJ's failure to explain his rejection of the claimed listed
impairments, we were able to look to other portions of the ALJ's decision and to
clearly credible evidence in finding that his determination was supported by
substantial evidence. Cases may arise, however, in which we would be unable to
fathom the ALl's rationale in relation to evidence in the record, especially where
credibility determinations and inference drawing is required of the ALl. In such
instances, we would not hesitate to remand the case for further findings or a
clearer explanation for the decision. [citations omitted] Thus, in future cases in
which the disability claim is premised upon one or more listed impairments of
Appendix 1, the Secretary should set forth a sufficient rationale in support of his
decision to find or not to find a listed impairment.
Id. at 469 (emphasis added). Here, it is unclear from the ALl's decision which criteria of Listing
1.04A, which is the relevant listing for spinal disorders, the plaintiff failed to meet-or, for that
matter, whether the ALJ even applied Listing 1.04A to the plaintiffs impairments? By contrast,
in Berry, for example, the court was able to "reasonably infer" the particular criteria the ALJ
found lacking. See Berry, 675 F.2d at 468-69. The Court agrees with those portions of Judge
Pitman's opinion detailing that the medical evidence in the record demonstrates that plaintiffs
impairments do in fact meet each of the requirements of Listing 1.04A--even if some of the
evidence, particularly with respect to the criteria of muscle weakness, was not overwhelming.
(Report at 91-98.) In light of the ALJ's failure to explain his reasoning and the conflicting
medical evidence in the record, this Court cannot conclude by looking at "sufficient
uncontradicted evidence" that the ALJ's decision was supported by substantial evidence. See
Sava, 2010 WL 3219311, at *4. Accordingly, this objection is overruled, and the Report's
recommendation on this point is adopted.
2 In order to meet the requirements of Listing 1.04A, the plaintiff must demonstrate each of the following spinal
disorder criteria: (1) "[e]vidence of nerve root compression;" (2) "neuro-anatomic distribution of pain;" (3)
"limitation of motion of the spine;" (4) motor loss (atrophy with associated muscle weakness or muscle weakness);"
and (5) sensory or reflex loss." 20 C.F.R. Pt. 404, Subpt. P, App. 1.
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3. Treating Physician Rule
Defendant also objects to Judge Pitman's recommendation that on remand the ALJ
should confirm that all relevant medical records from Dr. Beale have been provided to the SSA
and that the ALJ should specify the weight ultimately given to Dr. Beale's opinions. Defendant
argues that re-contacting Dr. Beale is unnecessary and not required under the rules and
regulations because the medical evidence of record was otherwise adequately developed for the
ALJ to make his determination. Defendant also contends that the ALJ properly declined to
assign Dr. Beale's medical source statement significant weight.
As an initial matter, defendant does not object to (and the Court finds no error with)
Judge Pitman's determination that Dr. Beale is properly considered to be plaintiff's "treating
physician." The opinion of a treating physician must be given controlling weight if it "is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record." 20 C.F.R. §§ 404. 1527(d)(2),
416.927(d)(2). Ifa treating source's opinion is not given controlling weight, the SSA must
assess the following factors in determining how much weight to afford that opinion: (1) the
frequency of examination and the length of the treatment relationship; (2) the evidence in support
of the opinion; (3) the opinion's consistency with the record as a whole; (4) whether the opinion
is from a specialist; and (5) other relevant factors. See Schaal v. Apfel, 134 F.3d 496,503 (2d
Cir. 1988) (citing 20 C.F.R. §416.927(d)(2)). "The Commissioner must set forth 'good reasons'
for failing to accord the opinions of a treating physician controlling weight." Pierre v. Astrue,
No. 09-cv-1864 (JG), 2010 WL 92921, at *8 (E.D.N.Y. Jan. 6,2010); 20 C.F.R. § 416.927(d)(2).
The Second Circuit has instructed that remand is appropriate "when the Commissioner has not
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provided 'good reasons' for the weight given to a treating physician's opinion," and when
"opinions from ALJs ... do not comprehensively set forth reasons for the weight assigned to a
treating physician's opinion." See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004).
Here, the ALJ gave the medical opinion of Dr. Beale, plaintiffs treating physician, less
than controlling weight but did not apply the factors set forth in 20 C.F.R. § 404.1 527(d)(2)-(6).
As noted by Judge Pitman, the ALJ discounted Dr. Beale's opinion by stating that it could not
"be afforded great weight," but the ALJ did not explain why Dr. Beale's opinion was not
afforded great weight. The failure of the ALJ to provide "good reason" for not giving Dr.
Beale's opinions controlling weight, to mention the weight his opinions were given, and to apply
the factors set forth in the regulations are sufficient grounds for remand.
Halloran, 362 F.2d
at 33; see also Pierre, 2010 WL 92921, at *9 (concluding that the ALJ did not provide good
reasons for not giving treating physicians' opinions controlling weight and "failed even to
mention the weight these opinions were given (except to say it was not 'great')").
In addition, "an ALJ cannot reject a treating [source]'s diagnosis without first attempting
to fill any clear gaps in the administrative record." Rosa v. Callahan, 168 F .3d 72, 79 n. 5 (2d
Cir. 1999). The Social Security regulations require the ALJ to "seek additional evidence or
clarification from [claimant's] medical source when the report from [claimant's] medical source
contains a conflict or ambiguity that must be resolved, the report does not contain all the
necessary information, or does not appear to be based on medically acceptable clinical and
laboratory diagnostic techniques.'" Calzada v. Astrue, 753 F. Supp. 2d 250,277 (S.D.N.Y.
2010) (quoting regulation formerly codified at 20 C.F.R. § 404.1512(e)(1
Comm'r of Social Security, 143 F.3d 115, 117-18 (2d Cir. 1998).
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»; see also Clark v.
Here, the treatment records do not contain Dr. Beale's notes or findings from
examinations purportedly conducted between November 2002 (when Dr. Beale stated that he had
first examined plaintiff) through November 2005 (when Dr. Beale completed the questionnaire
indicating that he examined plaintiff about every six months). Contrary to defendant's assertion,
the ALJ cannot conclude that the record was adequately developed without first confirming that
no such treatment records exist. Accordingly, these objections are overruled, and the Report's
recommendation on this point is adopted.
4. Plaintiff's Credibility
Finally, defendant objects to Judge Pitman's finding that the ALJ failed to properly assess
plaintiffs credibility. Defendant contends that the ALJ acknowledged plaintiffs symptoms and
alleged limitations, carefully assessed the medical evidence, and concluded that plaintiff s
statements concerning the intensity, persistence, and limiting effects of his symptoms were not
entirely credible. Defendant also argues that the ALJ's credibility assessment was supported by
substantial evidence.
While an ALJ has the discretion not "to credit [claimant's] testimony about the severity
of [his] pain and the functional limitations it caused," Rivers v. Astrue, 280 Fed. Appx. 20, 22
(2d Cir. 2008), the assessment must be made "in light of medical findings and other evidence."
Mimms v. Heckler, 750 F.2d 180,186 (2d Cir. 1984). However, "[e]ven if subjective pain is
unaccompanied by positive clinical findings or other objective medical evidence, it may still
serve as the basis for establishing disability. If the claimant's testimony as to pain is not fully
supported by clinical evidence, the ALJ must consider additional factors in his assessment."
Urena-Perez v. Astrue, 06 CIV. 2589 JGKlMHD, 2009 WL 1726217 (S.D.N.Y. Jan. 6, 2009)
report and recommendation adopted as modified, 06 CIV. 2589 (JGK), 2009 WL 1726212
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(S.D.N.Y. June 18,2009). These factors include: (1) the claimant's daily activities; (2) the
location, duration, frequency, and intensity of symptoms; (3) precipitating and aggravating
factors; (4) type, dosage, effectiveness, and side effects of any medications taken; (5) other
treatment received; and (6) other measures taken to relieve symptoms. 20 C.F.R. §§
404. 1529(c)(3)(i)-{vi); 416.929(c)(3)(i)-{vi); see also Ortiz v. Astrue, 11-cv- 3323 (NRB), 2012
WL 2426298 (S.D.N.Y. June 21, 2012). "This issue is not whether the clinical and objective
findings are consistent with an inability to perform all substantial activity, but whether plaintiff's
statements about the intensity, persistence, or functionally limiting effects of [his] ... back pain
are consistent with the objective medical and other evidence. Urena-Perez, 2009 WL 1726217,
at *40 (quoting Schultz v. Astrue, 2008 WL 728925, at *12). "If, after considering plaintiff's
subjective testimony, the objective medical evidence and any other factors deemed relevant, the
ALJ rejects [his] subjective testimony, he must explain that decision explicitly and with
sufficient specificity that a reviewing court may be able to decide whether there are legitimate
reasons for the AJL's disbelief and whether his decision is supported by substantial evidence."
Id. (citing Schultz, 2008 WL 728925, at *12). "Absent these findings, remand is appropriate."
Id. (citing Hardhardt v. Astrue, 2008 WL 2244995, at * 10-11 (E.D.N. Y. May 29, 2008)); see
also Fox v. Astrue, 2008 WL 828078, at *14 (N.D.N.Y. March 26, 2008) (remanding, in part,
because the ALJ failed to discuss many of the factors).
In this case, the ALJ stated that the claimant's allegations of his functional limitations
were not credible principally because the ALJ found that the claimant "has been capable of
perfonning light work since his alleged onset date." The ALJ also concluded that "the
claimant's statements are not credible to the extent they are inconsistent with the residual
functional capacity assessment." This Court concludes that the ALJ committed legal error in
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evaluating the claimant's credibility. First, the ALJ did not consider the additional factors
required by 20 C.F.R. §§ 404.1S29(c)(3)(i)-(vi) before rejecting plaintiff's subjective testimony,
nor did he explain his "decision explicitly and with sufficient specificity that a reviewing court
may be able to decide whether there are legitimate reasons for the AJL's disbelief and whether
his decision is supported by substantial evidence." See Urena-Perez, 2009 WL 1726217, at *40.
Although the ALJ discussed how the medical evidence in the record is inconsistent with an
inability to perform light work, the ALJ did not properly question whether the "plaintiff's
statements about the intensity, persistence, or functionally limiting effects" of his pain are
consistent with the objective medical evidence. See id. (emphasis added). The recitation of
medical evidence, without more, is not a stand-in for a "meaningful analysis of how those factors
detracted from [the plaintiff's] credibility." See Kerr v. Astrue, No. 09-cv-l119 (OLS), 2010
WL 3907121, at *4 (N.D.N.Y. Sept. 7,2010) report and recommendation adopted, 7:09-CV1119
OLSNEB, 2010 WL 3893922 (N.D.N.Y. Sept. 30, 2010).
Furthermore, as noted in Judge Pitman's opinion, the ALJ's credibility assessment was
improperly performed to the extent that the ALJ first determined plaintiff's overall RFC and then
used that RFC to discount plaintiff's non-conforming allegations and resulting limitations. What
is missing from such an analysis is "any explanation as to why [p]laintiff's SUbjective complaints
were found less than fully credible." Id.; see also Meadors v. Astrue, 370 F. App'x 179, 184 (2d
Cir. 2010) ("Because we agree that the ALJ did not properly evaluate the Appellant's testimony
regarding her pain, we are unable to give his calculation of Appellant's RFC meaningful
review."). Accordingly, defendant's objections are overruled, and the Report's recommendation
is adopted on this point.
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CONCLUSION
For the reasons discussed above, judgment on the pleadings is granted in favor of
plaintiff and the case is remanded for further proceedings consistent with Judge Pitman's report
and recommendation.
SO ORDERED.
Dated:
New York, New York
September 25,2012
/7~ 7~'J--.
~
.CARTER,JR.
United States District Judge
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